We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

I’m going to assume that all the people involved in this story are female. I’m probably wrong, but that will allow me to make up fake names for them.

PEANUT BUTTER PASSION

The letter writer (let’s call her Zoey), had a peanut allergy and worked in a small office. Zoey asked a co-worker (let’s call her Addison) not to eat peanut butter in the common area because it made Zoey sick. Addison protested, and Zoey and Addison had a few more arguments over the peanut butter issue during the next few months. One day, Zoey “noticed my hand was bright red,” and she had a headache and a “tightening” throat. Then she noticed peanut butter on the back of her hand. She reached under her desk and found a big blob of peanut butter smeared there.

Zoey accused Addison, who denied it, and when Zoey called the boss, the boss totally sided with Addison, saying she didn’t believe Addison would do it and added that she (the boss) did not believe Zoey “should be able to dictate what others eat.”

Karla Miller’s answer and the comments were primarily focused on the Human Resources implications and whether the peanut butter spreader (whether it was Addison or not) could be criminally liable.

But there are some implications to this under the Americans with Disabilities Act, too.

Some are what I would call “peanut butter allergy skeptics.” I don’t want to link to the more extreme articles from this camp (well, never mind, here’s one. I don’t endorse it, and I don’t think the writer is even a doctor, but it gives you an idea of what allergy sufferers sometimes have to put up with).

I am going to assume that the skeptics are wrong and that peanut allergies really do exist and can result in severe reactions.

Under the liberalized ADA Amendments Act, which has been the law since 2009, it’s reasonably likely that a peanut allergy that results in rashes, headaches, tightening throat, and anaphylactic shock could be considered a “disability.” As one of Ms. Miller’s lawyer consultants recommended, Zoey should get a note from her physician confirming that she has been diagnosed with a peanut allergy, and that her symptoms are triggered by exposure to peanuts and peanut products being eaten by her co-workers.

And then what?

WHAT SHOULD EMPLOYERS DO?

If Zoey presents medical documentation that her condition is as she has described it, would the employer be required to make reasonable accommodations? Yes, arguably, and if possible.

Would one possible reasonable accommodation be requiring employees to consume peanuts or peanut products off-site instead of in the small office? Yes. It might also be possible to create a space far from Zoey’s desk where employees could eat peanuts without causing her to have symptoms.

Should Addison be fired? Not based on what we know now. We don’t know that Addison is the one who put the peanut butter under Zoey’s desk.

If they ever catch the employee who put the peanut butter under Zoey’s desk, should that employee be disciplined or discharged? Disciplined, definitely, and discharged, maybe. (Read on.)

Let’s say Addison or a co-worker put the peanut butter under Zoey’s desk out of meanness, hoping to cause her to go into anaphylactic shock.If an investigation confirms this, would you fire Addison or the co-worker? Yes, I would.

Let’s say another co-worker, Mildred, hates Addison with a flaming hot passion. Mildred is aware of the ongoing peanut butter dispute between Zoey and Addison. In an attempt to get Addison fired, Mildred spreads the peanut butter under Zoey’s desk, knowing that Addison will take the rap. If an investigation confirms this, would you fire Mildred? You betcha.

Let’s say Addison or a co-worker read some of the “peanut allergy skeptic” literature and didn’t believe that sniffing peanut butter would cause Zoey to get sick. And Addison or the co-worker secretly put the peanut butter under Zoey’s desk as a “test” to “prove” that her allergy is all in her mind. If an investigation confirms this, would you fire Addison or the co-worker? In this case, I might not fire, but I’d issue a final warning and also a stern lecture about how it’s not their place to “test” employees for allergies or allergic reactions. I’d also make them apologize to Zoey. And if it ever happened again, I wouldn’t hesitate to fire. Reasonable minds can differ, and I think it would be legal for an employer to simply fire them the first time without giving them another chance.

Let’s say Zoey is the one who smeared the peanut butter under her own desk because she is a drama queen. If an investigation confirms this, would you fire Zoey? Yes.

Let’s say you’re an employer, and you have an employee with a peanut allergy who tells you that someone maliciously smeared a glob of peanut butter under her desk, causing her to get sick. The prime suspect denies it, you can’t prove it, and nobody else comes forward either. You want to be fair to everybody, but you don’t want this behavior to continue. What would you do?